England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
SITTING AT WOOLWICH CROWN COURT
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
HIS HONOUR JUDGE BAILEY
GH100216

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/06/2010

Lady Justice Smith:

Introduction

1. This is an appeal against the order made by HH Judge Edward Bailey on 15 July 2009 in an action for personal injuries brought by Michael Steele (a Category A prisoner) against the Home Office as the department of state responsible for HM Prison Service. The judge awarded the claimant £66,400 inclusive of interest mainly in respect of toothache suffered over a period of almost seven years as the result of the Prison Service's failure to provide him with adequate dental care. The trial judge gave permission to both parties to appeal his decision but, in the event, only the Home Office has appealed. The appeal covers some aspects of the decision on liability and also on quantum.
2. Although the claim was brought in the Central London County Court, the hearings, both at first instance and on appeal, were conducted at Woolwich Crown Court.

The facts

3. In January 1998, the respondent was convicted on three counts of murder and was sentenced to life imprisonment. Ever since, he has been detained in high security prisons with Category A status.
4. As a young man, the respondent sustained damage to his teeth while playing rugby football. During the 1980s and 1990s, he underwent extensive restorative work. Since his incarceration, he has needed a good deal of dental treatment. It was common ground before the judge and before this court that the Home Office owed the respondent a duty of care in respect of the provision of the dental treatment. The extent of that duty was not agreed and will be discussed later in this judgment.
5. It appeared in the course of the evidence before the judge that the usual arrangements made for the provision of dental treatment for inmates was for each prison to employ a regular visiting dentist. There does not appear to have been any system by which an inmate would be summoned for routine inspection by the dentist; an inmate who wished to see a dentist had to apply for an appointment. There would usually be a delay of about 6 weeks before an appointment could be given.
6. In early 1998, while detained in HMP Belmarsh, the respondent lost a filling from one of his teeth. He was in considerable pain. He requested a dental appointment but, before one was provided, he was moved to HMP Full Sutton. On arrival there, on 24 February 1998, he informed the receiving medical officer that he required a dental appointment and was told that he would be given one. However, it was not until 2 October 1998 that the respondent finally saw a dentist. During that time, he had continued to suffer toothache. The details of the efforts he had made during the intervening 7 months to obtain an appointment need not now be recounted. They were fully considered by the judge who concluded that the Prison Service had breached its duty of care towards the respondent. The judge held the Home Office liable in respect of the pain suffered during that period. That holding is not now challenged.
7. It was towards the end of this period of inactivity that the respondent decided to take action against the Home Office. He instructed solicitors who, in due course, obtained legal aid to bring a claim.
8. The dentist whom the respondent saw on 2 October 1998 was Mr Strevens. On examination, he accepted that the respondent required treatment, including but not limited to the replacement of the lost filling. Three appointments followed, between October 1998 and February 1999 and some work was completed. In respect of the work done, the judge held that respondent had no cause for complaint. However, the judge did accept that, in the ensuing months, between February and late July 1999 (when the respondent was moved to HMP Belmarsh), the Home Office failed to provide reasonable dental care in that necessary work was not carried out. There is no challenge to that holding. The judge accepted that the respondent was suffering from pain during that time.
9. Following his removal to HMP Belmarsh in late July 1999, the respondent requested a dental appointment and was seen on 27 September and 14 October 1999. The dentist (not identified) accepted that treatment was needed and undertook some work but, before it had been completed, the respondent was moved to HMP Frankland on 22 October 1999. The respondent made no complaint about events at HMP Belmarsh.
10. On arrival at HMP Frankland, the respondent was referred quite quickly to Dr Rita Pokorski, the resident dentist. She assessed the respondent and, over the ensuing year she provided treatment on 8 occasions. The respondent has no complaint whatsoever about the conduct of Dr Pokorski; indeed quite to the contrary. Dr Pokorski formed the view that the respondent might need specialist treatment and, in February 2000, she referred him to Professor Walls, Professor of Restorative Dentistry at the Dental Hospital, Newcastle upon Tyne. He advised on the need for some quite complex root canal work to be carried out. Some of the recommended work required prior approval by the NHS Dental Practice Board. Dr Pokorski submitted an appropriate request. Meanwhile she was able to carry out some treatment for which no special approval was required. This work included the preparation of a gold inlay to be fitted to the respondent's lower right molar (LR7). However, shortly before the inlay was due to be fitted on 6 November 2000, the respondent was moved to HMP Belmarsh.
11. On arrival at HMP Belmarsh, the respondent sought a dental appointment but, on 11 January 2001, before he had received any treatment, he was moved again, this time back to HMP Full Sutton, where Mr Strevens was still the resident dentist. On reception, the respondent explained that he was undergoing dental treatment and had an outstanding appointment at Frankland. By this time, the respondent had just issued a claim form commencing an action against the Home Office alleging failure to provide adequate dental treatment in respect of his earlier period of incarceration at HMP Full Sutton. Although the complaints articulated at that time did not in terms impugn Mr Strevens' competence, the respondent took the view that Mr Strevens was involved in the case and that it was inappropriate for him to be treated by Mr Strevens. A medical record made on 15 January 2001 recorded that the respondent was 'very polite but declined (treatment) due to ongoing litigation'.
12. The effect of the respondent's refusal of treatment by Mr Strevens was that he received no dental treatment at all during the ensuing ten months. That period came to an end with his transfer to HMP Whitemoor on 20 November 2001. In respect of that ten month period, the judge held the Home Office liable for failing to provide or at least to consider the provision of the services of a dentist other than Mr Strevens. That holding is challenged on this appeal and I will return to it in due course.
13. On arrival at HMP Whitemoor in November 2001, the respondent immediately asked for a dental appointment and saw the resident dentist Mr Pickering on 6 December 2001. The conditions of the examination, which took place in the Special Secure Unit, were quite unsatisfactory. There was no proper lighting or equipment; just an ordinary table and chair. It appears that Mr Pickering learned that the respondent was in dispute with a former dentist. It also appears that the respondent's dental notes were not provided to Mr Pickering. The evidence as to what was said and done on that occasion and during the ensuing weeks was disputed at the trial but the judge found that Mr Pickering decided that he would not treat the respondent except in an emergency and that, save for taking a number of x-rays in February 2002, he did not do so. During this period the respondent wished to be treated and was expecting to be treated but, despite the fact that he complained of continuing pain, he did not receive any treatment at all. This period came to an end in July 2002 in circumstances which I will shortly relate. In respect of the 8 month period from December 2001 to July 2002, the judge held the Home Office liable for a failure to provide dental treatment. There is no appeal from that holding.
14. That period came to an end on 3 July 2002 when the respondent made a complaint about Mr Pickering's failure to treat him, in the course of which he described Mr Pickering as incompetent, indicated that he would refuse treatment from him if offered and stated his intention to sue the dentist and to recover damages which he would use in order to pay for private dental treatment. The authorities at Whitemoor responded to this complaint by stating that the x-rays showed that no urgent dental treatment was needed and noted that the respondent would refuse treatment from Mr Pickering. At that time, the respondent had no money to pay for private treatment. The result was that the respondent did not receive any dental treatment. The judge found that, during the early part of this period, he was suffering only moderate discomfort but that, from the Spring of 2003, his pain was severe. The judge held the Home Office liable for breach of duty in respect of this period on account of the failure to provide a dentist other than Mr Pickering. That holding is challenged on this appeal and I will return to it.
15. At the end of August 2003, Mr Pickering left HMP Whitemoor and was replaced as resident dentist in September 2003 by Dr Pippa Arbon. The respondent immediately applied for an urgent appointment. At this time, he also wrote to Dr Pokorski who replied promising that she would forward the gold inlay, which she had retained, to the new dentist at Whitemoor.
16. The appointment did not take place until 25 November 2003 and it took place in the Special Secure Unit where there were still no proper facilities for examination. I need not recount the details of what happened during the following three years (ending in September 2006) because these events are not the subject of any appeal to this court. Suffice it to say that the respondent did not receive any dental treatment from Dr Arbon; the judge held that the Home Office was in breach of its duty of care to the respondent and that holding is not challenged on this appeal.
17. In September 2006, the respondent was transferred temporarily to HMP Woodhill. There he saw a dentist called Dr Judith Husband who provided emergency treatment about which no complaint was made. Dr Husband gave evidence as to her observations at the time of that examination and her estimate of the severity of the pain the respondent was suffering.
18. On his return to HMP Whitemoor later in September 2006, the respondent refused to accept treatment from Dr Arbon. For the purpose of the damages claim, the story ends there. However, it appears not to be disputed that the treatment plan recommended by Professor Wall and Dr Pokorski in 2000 has never been completed.

The proceedings

19. As I have said, the claimant decided as early as 1998 that he wished to take proceedings in respect of his dental treatment. A claim was eventually issued in January 2001. At that time, the claimant had a solicitor and the benefit of public funding. In late 2001, the Treasury Solicitor wrote to the Legal Services Commission inviting them to discharge the respondent's certificate and, for reasons which are not understood, that was done. Since that time, the respondent has conducted the proceedings in person, with the assistance of a Mackenzie Friend.
20. It is not necessary for the purposes of this appeal to recount the long and tortuous process by which this claim was eventually brought to trial. Many of the difficulties were caused by the periodic movements of the respondent from prison to prison as I have recounted above. It is necessary only to record that the claim in negligence and breach of duty was extended by amendment to include events up to 2006. Also, the respondent brought a claim for misfeasance in public office, alleging in effect that the failure to provide him with dental treatment was deliberate. The judge rejected that claim and the respondent has not appealed.
21. The hearing took place in February 2009 and judgment was handed down in July 2009. The judge held that there was a breach of the duty of care for each period in respect of which complaint was made. He assessed damages for pain and suffering at £45,000. He awarded £16,000 as future pecuniary loss, representing the cost of dental treatment which the respondent ought to have received on the NHS but had not received. As I have said, with interest the total award was £66,400.

The appeal to this Court – liability issues

22. As I have said, the appellant challenges only two of the judge's holdings on liability. I will deal first with the holding of liability in respect of the period from February to December 2001 during which time the respondent refused to be treated by Mr Strevens at HMP Full Sutton on the ground that the dentist was involved in the ongoing litigation. The judge's reasoning in holding the Home Office liable in respect of this period is set out at Paragraph 137 of his judgment where he says:

"In my judgment, where a prison governor knows that an inmate is bringing professional negligence proceedings against the prison dentist, he should consider the need for making alternative arrangements to provide dental care to that inmate. Where, as here, the inmate is in the middle of treatment started by a prison dentist at another prison, a proper consideration of the matter should result in the provision of an alternative dentist."

23. The judge then went on to discuss the fact that the allegations then being made in the litigation were limited to delay rather than the incompetence of Mr Strevens. At paragraph 139 he continued:

"Nevertheless, the position in February 2001 was that Mr Steele made it clear to the Defendant that he was not prepared to be treated by Mr Strevens because of the litigation. Had the relevant Governor at HMP Full Sutton considered the matter of treatment for Mr Steele, he or she would have had no assistance from the pleadings in the litigation. …. In the event however, there was no consideration of Mr Steele's position at all. The Defendant operated a 'one dentist take it or leave it' approach and accordingly Mr Steele had no dental treatment while in Full Sutton. Mr Strevens did not give evidence and his statement .. does not cover this period. Accordingly, I am unable to form any view as to whether Mr Strevens would have been prepared to treat Mr Steele, or whether any engagement with Mr Steele on the part of the Governor might have led to some rapprochement which would have enabled Mr Strevens to continue the treatment commenced by Dr Rita Pokorski and left incomplete by the transfer of Mr Steele away from HMP Frankland. That, however, is not the way in prison.

140. The Defendant knew that Mr Steele was part way through treatment (having temporary fillings in place) that Mr Steele had commenced civil proceedings for clinical negligence and that he was not prepared to see Mr Strevens because he had lost faith in him. In failing to consider alternative arrangements and to offer Mr Steele the opportunity to see another dentist the Defendant was in breach of its duty to Mr Steele."

24. On this appeal, Mr Johnson, for the appellant, submitted that the judge had imposed too high a duty on the Prison Service. The system was that an inmate who wished to have dental treatment must apply for it; if he is dissatisfied with the service offered, he must make a complaint for which forms are provided. The respondent was well aware of this procedure but chose not to follow it. There was no breach of duty.
25. Mr Johnson was asked to take us to the evidence of how this point was dealt with at the trial. It transpired that the respondent had not been cross-examined about it at all. When the respondent had been cross-examining Ms Carol Sanders, the head of healthcare at Full Sutton, the issue of making a complaint was raised by the judge and, in a very brief exchange, the judge was given to understand that the respondent had not made a formal complaint because he thought it would have been pointless.
26. Mr Johnson was also asked whether the appellant had called any evidence as to the policy or practice of the Prison Service when faced with an inmate who objected to being treated by a particular practitioner. Mr Johnson accepted that the Home Office had not called any evidence to show that, if the respondent had asked for alternative provision, it would have been forthcoming. But, he submitted, there was no burden on the Home Office to call such evidence; the burden was on the respondent to prove breach of duty. It was for the respondent to show that he had made a request for alternative provision and that it had been unreasonably refused.
27. Mr Johnson also submitted that the judge was not entitled to find as a fact that the Prison Service operated a 'one dentist take it or leave it approach'. There was no evidence upon which that finding could be rationally based.
28. It seems to me that this last point lies at the heart of the appeal on this issue. I can see that, in general, there is nothing wrong with a system which requires an inmate (who is of full capacity as this respondent is) to apply for dental treatment if he thinks he needs it and to complain formally if he is dissatisfied with what is on offer. However, if the judge was entitled to infer that the Prison Service operated a policy of 'one dentist take it or leave it', then he was entitled to reach two conclusions. First, he was entitled to conclude, as he did, that that policy did not fulfil the Prison's Service's duty of care in all cases. Also that, in the present case, given the Prison Service's knowledge of the circumstances, the duty of care included making an attempt at rapprochement and/or consideration of alternative provision. The judge would also, in my view, have been entitled to conclude that, in this case, the making of a formal complaint would have been pointless.
29. Was the judge entitled to hold that the Prison Service operated a policy of 'one dentist take it or leave it'? It is fair to say that there is no direct evidence to that effect. However, over the course of three days, this judge heard a great deal of evidence about the provision of dental treatment in prisons. That evidence must have led him to conclude that it was of a very variable standard. Provision at HMP Frankland had been excellent and there had been no cause for complaint about Belmarsh. But at both Full Sutton and Whitemoor, provision had been inadequate. In respect of two long periods while the respondent was at Whitemoor, the Prison Service made no attempt to provide an alternative dentist when the resident dentists (Mr Pickering and Dr Arbon) refused to treat him. The approach there was worse than 'one dentist take it or leave it'; it was 'the one dentist will not treat you; so that is it'. The Prison Service now accepts, unsurprisingly, that that policy amounted to a breach of duty.
30. I have come to the conclusion that, looking at the evidence as a whole, the judge was entitled to conclude that the policy at Full Sutton was 'one dentist, take it or leave it'. Moreover, he was entitled to hold that, bearing in mind the prison authorities' knowledge of the particular circumstances relating to the respondent at that time in 2001, it was a breach of duty to make no alternative arrangements for the completion of the course of dental treatment which had been begun at HMP Frankland.
31. I stress that I do not intend to lay down any general rules as to the extent of the duty of care in relation to the provision of dental treatment in prisons. The duty must be to make reasonable arrangements for provision. That provision is not of course limited to emergency treatment and must encompass such treatment as other citizens are entitled to receive on the NHS. I would agree with the judge's conclusion that a hard and fast policy of 'one dentist take it or leave it' is unacceptable. That is not to say that it is unreasonable to have only one dentist generally available. But reasonable arrangements must include the possibility of alternative provision in particular circumstances. It must be borne in mind that, in the community, if a patient is dissatisfied with his dentist for any reason, it is open to him to seek out another. That option is not available to a prisoner. All this judgment says is that the judge was entitled to hold that, in the particular circumstances of this case, the Prison Service had a duty to make alternative provision for this respondent.
32. The second period in dispute runs from July 2002 until August 2003. It will be recalled that the respondent had been at HMP Whitemoor since November 2001 and the resident dentist, Mr Pickering had refused to treat him, although the respondent was unaware of this and was expecting to be treated. The Home Office now accepts that that was an unacceptable state of affairs. On 3 July 2002, the respondent made a formal complaint saying that he was not now prepared to be treated by Mr Pickering who was incompetent. He would sue the dentist and use the money to pay for private treatment. In the event, he received no treatment at all while Mr Pickering remained the dentist at Whitemoor.
33. In giving judgment, the judge did not differentiate between the two parts of the period in which Mr Pickering was the resident dentist. He held that there was an unacceptable state of affairs throughout the whole of that time; the Home Office was in breach of duty in that it was failing to provide a dentist to treat the respondent. As I have said, the Home Office accepts that there was a breach of duty during the first part of this period, while the reason that the respondent did not have treatment was that Mr Pickering was unwilling to give it. But Mr Johnson for the Home Office contends on this appeal that, once the respondent was unwilling to be treated by Mr Pickering, the Home Office ceased to be in breach of duty.
34. I can see no merit at all in this submission. The fact is that whatever the respondent's attitude had been towards Mr Pickering, the latter was not prepared to treat the respondent, other than in an emergency. That remained the position throughout the whole period until Mr Pickering left Whitemoor. As I said earlier, the attitude of the authorities at Whitemoor seems to have been: 'we have a dentist; he will not treat you (except in an emergency) so you will not have treatment'. That that was their approach is confirmed by the response to the respondent's complaint which was that the X-rays (which I note had been taken 5 months earlier in February 2002) showed that emergency treatment was not necessary. The implication is that the authorities considered that they had no duty to provide anything more than emergency treatment. That is not a contention which Mr Johnson would espouse.
35. Mr Johnson's submission was that the respondent should have made a formal request for an alternative dentist to be provided. Had that been done, the authorities would have considered it. It seems to me that the complaint which the respondent did make in July 2002 amounted to an implied request for alternative provision. It is true that it was not expressed in that way. But where a prisoner threatens litigation in order to be able to pay for private treatment, one might reasonably infer that what he really wants is the opportunity to have NHS treatment from a dentist in whom he has confidence. However, that implied request was completely disregarded and the respondent was simply told that he did not need emergency treatment.
36. In my judgment, the judge was quite entitled to hold that the Home Office was in breach of duty for the whole of the period from February 2002 to August 2003 because, knowing that the respondent needed treatment, they failed to provide a dentist willing to treat him.

Quantum of General Damages

37. The argument before us on general damages had to take account of Mr Johnson's submissions that the Home Office had not been in breach of duty in respect of the two disputed periods. In the light of my conclusions on liability, that issue disappears.
38. Mr Johnson made two points. First, he submitted that the judge had over-stated the extent and severity of the respondent's pain. In particular, he should have inferred that the respondent was exaggerating his pain and discomfort from the fact that there were no records that he had been prescribed painkilling drugs. Second, even if the judge had been entitled to describe the pain as he had done, he had awarded too much.
39. I can deal quite quickly with the first point. The judge accepted the respondent's evidence as to the pain he had suffered, noting that it was supported by the opinion of Professor Walls, whose evidence he accepted. Professor Walls had described the pain associated with a tooth abscess, from which the respondent had suffered for about three years as 'arguably one of the most debilitating forms of pain'. The judge was plainly entitled to accept the respondent's evidence on this issue and it is worth recording that the judge preferred the respondent's evidence to that of other witnesses on a number of disputed issues in connection with liability. As for the respondent's need for analgesic drugs, the judge said, within paragraph 157:

"Throughout the period with which this case is concerned Mr Steel suffered from gout for which he was prescribed indometacin and also, on occasions, other drugs such as co-dydamol. The tooth pain he experienced was suffered notwithstanding these drugs which are pain relievers."

40. In my judgment, there is no merit in the submission that the judge should have inferred that the respondent was overstating the severity of his pain.
41. Mr Johnson was on stronger ground when he complained that the judge's award of general damages was too high, even on the basis of his own findings.
42. The judge held that the general damages should reflect not only the pain he had suffered due to the appellant's failure to treat him over the periods complained of, but also for some loss of amenity arising from the general deterioration in his dentition which had occurred as the result of the failure to treat. As to the pain, he recorded that the respondent had suffered 'really serious chronic pain' in two phases which together totalled 3 years and 10 months. In addition, he had suffered 'periodic pain of a more moderate order' for other periods totalling two years and four months. As I have said, he referred to Professor Walls' description of the pain caused by a tooth abscess. There was also before him evidence from Dr Judith Husband, who saw and treated the respondent over a short period in 2006 when she found that one of his teeth was undergoing irreversible pulpitis and was causing 'very severe continuous pain'. It was the respondent's evidence that that situation had pertained for something like three years. He said that the pain had kept him awake at night and had caused him stress during the day.
43. The evidence of general deterioration in the teeth was somewhat imprecise. Professor Walls had warned at an early stage in the litigation that, if the respondent did not receive appropriate treatment, he would be 'a dental cripple'. However, his view at the end of the day was that that had not occurred but that there had been a significant deterioration in the overall condition of respondent's teeth. The judge noted that some deterioration was likely to occur with time but, with proper dental care, this would be minor. The respondent took very good care of his teeth in so far as he was able. The substantial part of the deterioration in general condition lay at the door the Home Office.
44. The judge's approach to general damages was first to note that there was not a great deal of assistance to be derived from reported cases. I agree. He referred to the Judicial Studies Board Guideline which suggested that, for severe toothache lasting one week, disturbing sleep and causing stress during the day, an award of £500 would be appropriate. The judge then said that, taking half that rate and applying a multiplier of 199 for the number of weeks which this respondent had suffered severe pain produced a figure of £49,750. He then observed that a five figure sum might well be justified in addition for the periods of less severe pain and the general deterioration in dentition. He had reached a notional total of about £60,000. He then acknowledged that awards for pain and suffering cannot be built up in that way and concluded that the appropriate sum was £45,000.
45. I have great sympathy with the judge who found himself without any helpful comparative cases. On the face of it, it does not seem unreasonable to take £250 a week as a rough estimate of an appropriate award for continuing severe toothache. Nor does it seem at all unreasonable to say that two years four months of moderate discomfort and some significant general deterioration in dentition should be valued at £10,000. But the trouble is that, even when the resulting figure is rounded down to £45,000 that award is badly out of line with cases of other types. For example, the JSB guidelines suggest a bracket of £35,000 to £50,000 for lung disease such as emphysema, causing significant and worsening lung function and impairment of breathing, prolonged and frequent coughing, sleep disturbance and restriction of physical activity and employment. Also, the recommended bracket is £24,750 to £44,500 for back injuries where, despite treatment, there remain disabilities such as continuing severe pain and discomfort, impaired agility, impaired sexual function, depression, personality change, alcoholism, unemployability and the risk of arthritis. I do not think it is intended to suggest that if all those factors were present in combination, the award would be as little as £44,500 but it would appear that a back injury resulting in continuing severe pain with impaired agility and some psychiatric sequelae would merit an award of rather less than £45,000. I am driven to the conclusion that the judge's award in the present case is out of line by quite a substantial margin.
46. There is very little help to be derived from cases specifically relating to teeth. In general, very modest damages have been awarded for traumatic damage to teeth although the JSB guidelines observe that the damages will be greater where the damage itself is the result of protracted dentistry.
47. Mr Johnson referred us to Woodhouse v Hemsley [2004] reported in Kemp on Lawtel at document number AM0200681. There, general damages now worth £14,750 were awarded for the loss of 11 teeth as the result of a failure to diagnose and treat periodontal disease. Extensive dental treatment had been required and further treatment would be necessary for life. This case is of limited assistance as the pain and suffering relates largely to undergoing dental treatment rather than suffering long term pain.
48. Mr Johnson also referred us to Toone v Penney [2003] reported in Kemp on Lawtel document number AM 0200553. There, damages now worth £14,600 were awarded for injury caused by negligent dental treatment over a period of years. The claimant had lost many teeth and those that remained had become sensitive to hot and cold sensations. The damages related also to the need for repeated procedures. There was some loss of amenity in that the claimant's upper lip had sunk due to the extractions. The award was made by a district judge and, with respect to him, if the report conveys an accurate impression, the award seem to me to be rather low.
49. Mr Johnson's submission was that, on the facts as found by the judge the award should be about £15,000.
50. Mr Steele submitted that the £45,000 awarded by the judge was fair and appropriate compensation and he invited us to uphold it. He submitted that we should take into account that his pain and suffering was aggravated by the fact that he was locked up for much of the day and had nothing to do other than think about his toothache. I can understand and sympathise with that submission and I accept that his situation is a factor which can be taken into account in assessing damages. I am not, however, prepared to say that the damages should be higher for a prisoner than they would be for a person living in the community. It may be that a person living in the community will be particularly affected by experiencing toothache, for example because of the nature of the work he has to do.
51. The respondent had located a newspaper report about a case of a negligent dentist where damages of £85,000 had been agreed. It was undoubtedly a bad case involving 'botched' treatment over a period of 12 years and a clear report of severe pain. The difficulty is that the sum appears to have covered the return of some fees already paid (the work had been done privately) and might also have covered the cost of future remedial treatment. Mr Johnson made the point that the sum might also have covered some loss of earnings. That is possible although there is no indication in the report that the claimant had been unable to work. The real difficulty is that we cannot tell what sum was thought appropriate for the pain and suffering and, of course, this was a settlement rather than a judicial award.
52. The upshot of all this is that I am driven to make my own assessment of what I think is appropriate by reference only to the general framework of damages for personal injuries. I accept the judge's description of the pain and suffering and his finding in respect of the general deterioration, which are entirely justified on the evidence. In my view, this is a bad case involving persistent severe pain over nearly four years, together with more moderate pain for over two years and some significant deterioration in the general condition of the teeth. In my judgment, the appropriate award of general damages is £25,000.

Pecuniary Loss

53. The judge awarded £16,000 as pecuniary loss to represent the probable cost of treatment which the respondent needed (in effect completing the course of treatment advised by Professor Walls and Dr Pokorski) and which should have been provided by a prison dentist. Mr Johnson did not dispute the reasonableness of this sum, which was derived mainly from the evidence of Professor Walls. Mr Johnson's submission was that the judge had not dealt with the issue of causation. He pointed out that it had not been alleged that the negligent dental treatment had given rise to the need for treatment. The need for it had arisen naturally.
54. It is true to say that, in his main judgment, the judge did not spell out the basis on which he had awarded this pecuniary loss. I think that he thought it was so obvious as not to require specific explanation. However, when he was asked for permission to appeal, he explained that the basis of the award was that the respondent should have been treated free of charge on the NHS and he had not been. He might have added that, even by the date of trial in 2009, the respondent had not been given NHS treatment and there was no evidence of an intention to provide it. He might also have added that it is not open to the respondent to arrange for the attendance of an NHS dentist in prison; if he is to make arrangements, they have to be paid for.
55. In my judgment, this award was plainly made on an entirely proper basis and I would dismiss this appeal on that issue.

Conclusion

56. For the reasons I have given I would allow the appeal on quantum to the extent that I would quash the award of £45,000 general damages and substitute an award of £25,000. In all other respects, I would dismiss the appeal. If the other members of the Court agree with this result, it will be necessary to adjust the calculation of interest and also to extend the period for which interest is to be claimed. That calculation must take into account the interim payment made in February 2010. I hope that the parties will be able to agree the calculation of interest and to agree what order, if any, is to be made in respect of costs.

Lord Justice Carnwath :

57. I agree.

Lord Justice Laws :

58. I also agree.